The Gilded Cage May Be Open, But After Years Inside the Bird No Longer Knows It Can Fly

What 500 Advocates Told Us About the Supreme Court Judgment

Last week, more than 500 advocates, lawyers, providers, commissioners, parents and practitioners came together to explore the implications of the Supreme Court's recent deprivation of liberty judgment. If you missed it you can check our the recording here.

For some, the judgment represents a welcome correction to an overly bureaucratic system. They see it as opening the door to the gilded cage for people who are happy with their care arrangements.

But advocates know that freedom is not measured simply by whether the door is open.

Freedom is measured by whether a person can reach the door, understand that it is there, and has someone beside them when they choose to walk through it.

This judgment is significant. It represents a fundamental shift in how we think about restrictions, consent and liberty. The law has changed overnight and the sector is now grappling with what that means in practice.

The overwhelming mood of the webinar was concern.

Concern that important safeguards may be disappearing.

Concern that some of the most vulnerable people in society may lose access to independent scrutiny.

Concern that the system is not yet ready for the scale of change that lies ahead.

Four themes emerged repeatedly throughout the discussion which I would like to capture in this blog.

Theme 1: Compliance Is Not Consent

This was, by some distance, the strongest theme. Participants repeatedly questioned whether apparent acceptance can safely be treated as evidence of consent.

What happens when a person appears to be consenting:

• in this moment, but expresses different wishes on different days?

• because they cannot communicate an objection?

• because they have become institutionalised?

• because they are frightened to complain?

• because they believe they are going home tomorrow?

• because they have become accustomed to restrictions?

• because the people around them do not recognise their unhappiness?

What happens when a person previously objected but no longer does?

What happens when a person's world has become so small that they no longer believe alternatives exist?

All of these situations can create the appearance of consent without necessarily reflecting genuine choice.

As advocate Esther Esua observed during the discussion: "Silence is not the same as consent."

That simple statement captured one of the central concerns raised throughout the webinar.

Theme 2: Hidden People Becoming More Hidden

The potential loss of advocacy was another recurring concern.  Participants spoke passionately about the role advocates and paid RPRs play in identifying issues that would otherwise go unnoticed.

Many reflected on situations where people had told carers they were "fine" whilst expressing very different feelings to an independent advocate.

Others described raising concerns not because a person had explicitly instructed them to do so, but because the advocate had become worried about what they were seeing.

Examples included:

• Challenging unnecessary restrictions.

• Improving quality of life for people living with dementia.

• Raising concerns when DoLS conditions were not being followed.

• Identifying issues beyond the original reason for referral.

• Noticing changes in behaviour that suggested something was wrong.

• Supporting families to challenge decisions.

Participants repeatedly returned to the same questions:

• Who will speak up for people who have no family?

• Who will identify concerns if no advocate is involved?

• How will people access advocacy if they are not already known to services?

Advocate Abigail Todd perhaps captured the mood best when she described people as: "Disappearing into a void."

Theme 3: The Loss of Independent Scrutiny

Many attendees expressed concern that decisions about whether safeguards apply may increasingly rest with the very organisations responsible for providing or commissioning care.

Participants questioned:

• Whether providers will recognise objections.

• Whether local authorities will apply the new approach consistently.

• Whether safeguarding systems are robust enough to fill the gap.

• Whether Care Act advocacy can realistically absorb the loss of other safeguards.

• Who will act when a person who appears content later becomes unhappy or begins objecting.

Several contributors made the important point that advocacy often identifies concerns that are neither safeguarding issues nor obvious abuse, but which nevertheless have a profound impact on a person's quality of life.

This is where advocacy is often at its most effective.

Not exposing scandals.

Not investigating abuse.

Simply noticing the small restrictions, assumptions and decisions that gradually narrow a person's world.

Theme 4: Anxiety About Implementation

The final theme was uncertainty.

Participants recognised that the judgment introduces a far more nuanced and complex approach to decision-making.  Many questioned how this will work in practice.

Questions included:

• When guidance will be published.

• Whether existing DoLS authorisations will be reviewed.

• Whether current authorisations will be terminated.

• What happens to ongoing Section 21A challenges.

• How hospitals will be affected.

• What the implications are for children and young people.

• How advocates should respond when a person without a DoLS authorisation appears to be objecting.

There was a clear sense that the sector is entering a period of uncertainty and whilst ADASS has advised local authorities to await further guidance, the law has already changed.

The practical consequences are now beginning to unfold.

But Advocates Are Already Thinking About Solutions

Despite the concern, the discussion was far from pessimistic. Advocates were already beginning to think about what comes next.

Ideas included:

• Expanding Care Act advocacy.

• Developing residential visiting or place-based advocacy.

• Increasing advocacy presence within care homes and hospitals.

• Working collectively with DHSC and national stakeholders on future guidance.

• Strengthening community advocacy.

• Building a stronger evidence base demonstrating the impact of advocacy.

• Campaigning for new Article 8 safeguards.

• Capturing stories and case studies that demonstrate the real-world impact of these changes.

There was a strong sense that advocacy organisations should respond collectively rather than waiting for solutions to emerge from government.

For me, the message is simple.

Advocates should do what advocates have always done.

Speak up.

Challenge.

Question.

Notice.

Stand alongside people whose voices might otherwise go unheard.

My final thoughts take me (repeatedly) to the beautiful metaphor Lady Hale gave us in Cheshire West. The door to the gilded cage is definitely no longer locked for those who are considered to be consenting to their arrangements.

But for many people, the problem was never the lock.

The problem was knowing a door even existed.

Or being unable to reach it.

Or having someone to show them the way.

The challenge facing all of us now is ensuring that those people do not become invisible.